Disability Review Board (10 USC 1554)

Moderator

On Wednesday, February 29th 2012, Cory McDonald underwent the first ever Disability Review Board for an enlisted member. The statement used at his hearing is below Cory McDonald has given me permission to share.

The Disability Review Board reviews cases of members discharged from service for disability without compensation. This usually happens when the condition is deemed to have existed prior to service w/o aggravation, occurred while AWOL or due to misconduct or gross negligence. If you were medically discharged with disability severance or disability retirement, this board is not an option.

The Disability Review Board under 10 USC 1554 has been around since around 1944 but is not well known nor advertised as an option for wounded warriors. Until the passage of the 2011 NDAA, the Disability Review Board was limited to officers only. The Disability Review Board includes the option of an in person hearing. Each Service conducts their own Disability Review Board. The Army’s are conducted by the Army Review Board Agency, the Air Force’s by the Air Force Review Board Agency and the Navy’s and Marines’ are conducted by the Navy’s Council of Review Boards.

Cory McDonald enlisted in the Marines in 2003. Several weeks into training he sustained nerve damage in his arms due to road marches with an 80-100 pound pack and his rifle sling. His subsequent medical evaluation board determined he had a genetic vulnerability to this type of nerve damage but that the nerve damage itself was service aggravated. His command found his nerve damage to be in the line of duty. His PEB however, reversed those finding and stated his condition was EPTS without aggravation. The PEB failed to overcome the presumption of service aggravation as required in DoDI 1332.38. Our position at his Disability Review Board, as reflected in the statement, center on the DoDI 1332.38 standards and how the Navy PEB failed to follow these standards. Once he separated, the VA immediately service connected his nerve damage and rated it at 40% disabling.

The Navy’s Disability Review Board has 45 days to release its finding’s. If they follow well established rules as outlined in the statement, Cory McDonald will do fine. However, the Navy Physical Evaluation Boards do not have a good track record following the rules and the Navy’s Council of Review Boards assembled Cory McDonald’s Disability Review Board with standing members of the Navy’s Physical Evaluation Board. Explaining proper disability procedures to them, especially DoD standards and procedures, can be like explaining the world is round to the Flat Earth Society. They Navy PEB simply does not feel obliged to follow DoD standards and DoD does not feel obliged to enforce these standards.

Michael A. Parker
LTC, USA (Retired)
Wounded Warrior Advocate

SUBJECT: Argument on behalf of Cory P. McDonald February 29, 2012

TO: US Navy Disability Review Board

REFERENCES: 10 USC 1201-1222
DoDI 1332.38
SECNAVINST 1850.4E

FROM: Wounded Warrior Project and Cory P. McDonald

The Wounded Warrior Project and Cory P. McDonald are asking the Disability Review Board to find that Cory McDonald should have been medically retired under Chapter 61 of 10 USC and place him on the permanent disability retirement effective the date of his separation from the United States Marine Corps. We ask that the Disability Review Board find that the nerve damage affecting his right arm and the nerve damage affecting his left arm were independently unfitting conditions for his duties as an U.S. Marine Infantryman. We ask that the Disability Review Board rate each of these conditions at 20% disabling in concert with the VA ratings of these conditions that have been in effect since the date of his separation from the Marine Corps. We further ask that the Disability Review Board deem his unfitting nerve conditions combat related for disability retirement purposes.

As this is a subsequent appeal of a physical evaluation board, in your findings and determinations for this board, please provide responses to the issues raised in this hearing in an orderly an itemized fashion as required by 10 USC 1222a. By addressing these issues in your findings, Cory McDonald will be able to better understand the rationale for your decisions and thus be able to make a better determination as to what further administrative and/or judicial actions he may need to pursue.

If this Disability Review Board receives any type of records, statements, advisory opinions, outside emails/phone calls with information in regard to Cory McDonald’s case, we ask that the Disability Review Board immediately copy us on the information obtained and that we be allowed to respond to this information prior to the Disability Review Board rendering it findings.

We also ask that a copy of the recording of these procedures be provided to us as soon as it is available.
In 2003, Cory McDonald was discharged from the USMC for a condition the Navy Physical Evaluation Board (PEB) deemed to have Existed Prior To Service (EPTS) without service aggravation (Case File and C1-C7). The Navy PEB determinations were in error and I will outline why the Navy PEB determinations were erroneous.

If this board maintains the original IPEB determination that his unfitting condition was EPTS without service aggravation, please provide the accepted medical principle that shows his condition was EPTS and the accepted medical principle that his condition was not permanently aggravated in service beyond natural progression. It is our position that the Navy PEB did not adhere to these standards when they adjudicated his case in 2003. Please ensure your findings adhere to the following key definitions and standards from DoDI 1332.38.
E2.1.1. Accepted Medical Principles. Fundamental deductions, consistent with medical facts that are so reasonable and logical as to create a virtual certainty that they are correct.

E2.1.32. Service Aggravation. The permanent worsening of a pre-Service medical condition over and above the natural progression of the condition caused by trauma or the nature of Military Service.

E2.1.19. Natural Progression. The worsening of a pre-Service impairment that would have occurred within the same timeframe regardless of Military Service.

For the Disability Review Board to maintain the 2003 IPEB findings, they must, demonstrate, by citing accepted medical principles, that Cory McDonald’s nerve damage would have happened regardless if he had joined the Marine Corps and the nerve damage would have been just as severe had he had not joined the Marine Corps. The evidence of record will clearly demonstrate that his unfitting nerve damage occurred as a result of his service in the Marine Corps, that this damage is permanent, and that it should have been rated a combined 40% disabling per the VASRD from the date of his discharge through the maximum five year Temporary Disability Retirement List period. In fact, the VA has continually maintained a 40% combined rating for these conditions from his separation to present day. (See three VA Decision Documents in Case File or C8-C13 and C25.)
While Cory McDonald does have a genetic condition that makes him more vulnerable to nerve damage, the actual cause of his nerve damage stemmed from the rigors and trauma of military service. Specifically, the nerve damage was due to the pressure placed on these nerves by military equipment such as his 80-100 lb rucksack over long road marches and his rifle sling. His nerve damage was further worsened by the punitive “additional training” his drill instructor imposed on him when he reported the problems with his arms. This is well documented in his MEB and in his personal statement.

Per DoDI 1332.38, a military member is granted the presumptions that they entered the service in sound condition and that any aggravation of a hereditary condition beyond natural progression is service aggravated. These presumptions are as follows:
E3.P4.5.2. Presumptions for Members on Ordered Active Duty of More Than 30 days. The presumptions listed in paragraphs E3.P4.5.2.1. through E3.P4.5.2.3., below, apply to members on orders to active duty of more than 30 days for purposes of determining whether an impairment was incurred or aggravated while a member was entitled to basic pay.

E3.P4.5.2.1. At Time of Entry. A Service member is presumed to have been in sound physical and mental condition upon entering active duty except for medical defects and physical disabilities noted and recorded at the time of entrance.

E3.P4.5.2.2. After Entry

E3.P4.5.2.2.2. Hereditary and/or Genetic Diseases. Any hereditary and/or genetic disease shall be presumed to have been incurred prior to entry into active duty. However, any aggravation of that disease, incurred in the line of duty, beyond that determined to be due to natural progression, shall be deemed service aggravated.

E3.P4.5.2.3. Presumption of Aggravation. The presumption that a disease is incurred or aggravated in the line of duty may only be overcome by competent medical evidence establishing by a preponderance of evidence that the disease was clearly neither incurred nor aggravated while serving on active duty or authorized training. Such medical evidence must be based upon well-established medical principles, as distinguished from personal medical opinion alone. Preponderance of evidence is defined as that degree of proof necessary to fully satisfy the board members that there is greater than a 50% probability that the disease was neither incurred during nor aggravated by military service.

For clarity, please note the note that following definition from 10 USC 101:

The term “active duty for a period of more than 30 days” means active duty under a call or order that does not specify a period of 30 days or less.

Some in the military have erroneous opined that a member must have served for more than 30 days before an individual is covered under the sound condition and aggravation presumptions or to be eligible for military disability compensation. This is incorrect. A member is covered under the presumptions of sound condition and service aggravation, and under the Defense Disability Evaluation System, from day one of active duty if the orders to active duty specify the individual has been called to active duty for a period of 31 days or more.

Cory McDonald’s military records clearly demonstrate that he was on active duty orders that specified a period of active duty of more than 30 days (Case File and C14). Further, this nerve damage was not noted on his entry physical (Case File and C15). His MEB notes that prior to the onset of this nerve damage, no symptomology was noted (Case File and C16-20). His personal doctor during his youth and up to the period of his enlistment has stated he was in good health at the time of enlistment and that he had no nerve damage (A1).
To reemphasize, the DoDI 1332.38 cite above, when discussing hereditary and genetic conditions, states:

However, any aggravation of that disease, incurred in the line of duty, beyond that determined to be due to natural progression shall be deemed service aggravated.

Again, DODI 1332.38 defines service aggravation as follows:

E2.1.3.2. Service Aggravation. The permanent worsening of a pre-Service medical condition over and above the natural progression of the condition caused by trauma or the nature of Military Service.
And, again, DoDI 1332.38 defines natural progression as follows:

E2.1.19. Natural Progression. The worsening of a pre-Service impairment that would have occurred within the same timeframe regardless of Military Service.

This is exactly why his nerves were damaged, by the trauma and nature of military service. Before entering service, he had the same genetic susceptibility to nerve damage. However, he was able to play tackle football, play baseball, and perform duties as a lawn care laborer without ever having any such nerve damage issues. His nerve damage was clearly due to the rigors and trauma of military service that are beyond the intensity of a normal civilian lifestyle. As such, even if his vulnerability to nerve damage pre-existed service, his actual nerve damage occurred after he entered service. This nerve damage is permanent and was beyond natural progression. Plain and simple, Cory McDonald would not have this nerve damage his suffers from - had he not joined the Marine Corps.

Further, DoDI 1332.38 states:
E3.P1.3.4.1.3.1. For all cases with a finding of pre-existing condition without aggravation, the specific accepted medical principle for overcoming the presumption of Service aggravation shall be cited and explained.

The Navy PEB determinations stated his condition existed prior to service and was not aggravated. However, the PEB never provided the rationale, using accepted medical principles that create virtual certainty of correctness, for a finding that his nerve damage was not service aggravated. The only rationale provided in his IPEB determinations merely stated he had a hereditary liability to pressure palsies without ever addressing what caused the actual pressure palsies that damaged his nerves.

Echoing DoDI 1332.38, SECNAVINST 1850.4E states:

When the condition is considered unfitting due to natural progression without permanent service aggravation, the accepted medical principle that supports the finding of "natural progression" will be addressed in the Formal PEB rationale and/or Informal PEB work card.

And,
Congenital and hereditary conditions that do not manifest symptomatology until after a member enters active duty under orders specifying a period of more than 30 days shall not be considered service incurred. These conditions will be presumed service aggravated unless a preponderance of evidence based on accepted medical principles clearly establishes that the condition is solely the time result of the natural progression of the congenital or hereditary condition.

Cory McDonald’s IPEB decision and JDETS work card states:

“Generalized Polyneuropathy due to hereditary liability to pressure palsies.”

This is not a well-established medical principle that creates a virtual certainty, that his nerve damage was not a result of service aggravation above natural progression that would have occurred even if he had not joined the Marine Corps. The IPEB failed to meet this standard and the Disability Review Board must meet this standard if they are to uphold the original IPEB decision of EPTS without aggravation.

To overcome the presumption of aggravation, the IPEB needed to demonstrate that his condition would be just as bad had he not joined the military. The answer to this question is a resounding “no”. It was the nature and rigors of military service that caused the nerve damage beyond natural progression. Again, if he had he not joined the Marines, it would not have happened.

Of importance to this topic is the fact he received a line of duty determination from the Marines stating his condition was in the line of duty (Case File and C21). His Medical Evaluation Board, noting he had the genetic vulnerability for nerve damage, stated that his nerve damage itself did not exist prior to service (Case File and C16-20) In addition, the Veterans Administration, which has similar EPTS determination and service aggravation standards as the military, immediately service connected his nerve conditions upon his separation from the Marines (Case File and C9-11and C-25). The VA continued this 40% rating in 2006 when they reevaluated his nerve damage (Case File and C12). Current and continuing diagnosis is contained in Dr. Faibisoff’s letter dated 21 February 2012. (See A2).

His unfitting nerve damage was indeed permanently aggravated by his military service beyond natural progression. As such the Navy PEB should have found it compensable and rated the conditions.

SECNAVINST 1850.4E states:

4111 Categorization Of Findings

All PEB findings should be arranged into four categories for members found Unfit

to continue naval service :

a. Category I: All Unfitting Conditions

b. Category II: Those Conditions That Are Contributing to the Unfitting Condition.

c. Category III: Those Conditions That Are Not Separately Unfitting, And Do Not

Contribute To The Unfitting Condition.

d. Category IV: Conditions, Which Do Not Constitute A Physical Disability .

Note: Only Category I and Category II conditions will be rated by the PEB.

The Navy PEB stated that Cory McDonald’s genetic vulnerability to pressure palsies was a category I unfitting condition but his nerve damaged arms were related category II conditions that contributed to his unfitness. This position is nonsensical. He was clearly able to do the job and meet the physical requirements of his MOS, despite his genetic vulnerability, for the first two months of his Marine Corps Training. It was not until the nerve damage occurred that he could no longer perform the duties and meet the physical requirements of his MOS. It was the nerve damage that made him unfit to continue as a United States Marine. Regardless, even if his nerve damaged arms were category II conditions the PEB was required to rate them per SECNAVINST 1850.4E. 4111.

Each of Cory McDonald’s nerve damaged arms was and remains an independently unfitting category I condition. Without two strong, functioning arms he could not have passed a physical fitness test, passed a combat readiness test, or performed common military tasks let alone meet the additional intense physical requirements of a United States Marine Infantryman. All of these items are factors of fitness per DoDI 1332.38 and SECNAVINST 1850.4E. He could do all of these tasks before the nerve damage but he could not do any of them after the nerve damage took its full effect. If only his left arm was affected, he still could not have performed these tasks. If only his right arm was affected, he still could not have performed these tasks. The damage to the functionality of each arm made him unfit regardless of the status of the other arm.

Now the question turns to what should have been the correct IPEB rating and disposition of his unfitting nerve condition. The answer is that each of his unfitting nerve conditions should have been rated at 20% disabling, combined to 40% disability rating, and he should have been placed on the Permanent Disability Retirement List (PDRL). While a PEB can deduct the level of disability that existed prior to service, no such level of disability existed prior to his entry into service. His arms worked fine and there is no VASRD rating for the genetic vulnerability to pressure palsies. His diagnoses for the bilateral arm nerve damage remains current per the 21 February 2012 document from the St. Louis VA Medical Center Staff Neuologist (A2).

Cory McDonald’s unfitting nerve condition is clearly combat-related per the combat-related requirements in law as reflected in these excerpts from DoDI 1332.38.

E3.P5.2.2. Combat-related. This standard covers those injuries and diseases attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict. A physical disability shall be considered combat-related if it makes the member unfit or contributes to unfitness and was incurred under any of the circumstances listed in paragraphs E3.P5.2.2.1. through E3.P5.2.2.4., below.

E3.P5.2.2.4. Caused by an instrumentality of war. Incurrence during a period of war is not required. A favorable determination is made if the disability was incurred during any period of service as a result of such diverse causes as wounds caused by a military weapon, accidents involving a military combat vehicle, injury, or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material. However, there must be a direct causal relationship between the instrumentality of war and the disability. For example, an injury resulting from a Service member falling on the deck of a ship while participating in a sports activity would not normally be considered an injury caused by an instrumentality of war (the ship) since the sports activity and not the ship caused the fall. The exception occurs if the operation of the ship caused the fall.

Cory McDonald’s unfitting nerve damage was due to instrumentalities of war, specifically his military rucksack and his military rifle sling in hard charging military training. This makes these conditions combat-related. In addition, his nerve damage affecting the right arm is combat related under E3P5.2.2.3 under conditions simulating war, as it was due to damage caused by his rifle sling while conducting live fire weapons practice.

In conclusion, Cory McDonald’s Navy IPEB failed to properly adjudicate his disability case in 2003. This Disability Review Board needs to correct this injustice by finding him unfit due to two, independently unfitting conditions; the nerve damage affecting his left arm and the nerve damage affecting his right arm. Just as the VA did, the Disability Review needs to rate each of these unfitting conditions at 20% disabling which combines to a 40% combined disability rating. Finally, the Disability Review Board needs to find that Cory McDonald’s unfitting conditions were in fact combat-related.

PEB Forum Regular Member

Good morning, LTC Parker, I would like to see if maybe you can help me with applying for the Air Force Disability Review Board, I myself feel that I might quilfy for this also based on the documentation that I have recieved from SAF/MRBP. I would love to go into details with you if possible. I welcome all responses.

PEB Forum Regular Member

Im thiniking about filing an congressional today or tomorrow just to see what they can do or any advice they can give. Is there a time limit on when to file to DRB (Disability Review Board) when you are released from duty? I know that the congressional will take 6 weeks at the most to check out the information being given to them, my DOS will be passed by that time (it is on 3/28/2012), but I just want to check with this option sort of like checking a box for an list of procedures to be done.

PEB Forum Regular Member

That is awesome to hear Cory! My husband has a case almost similar to yours except he was discharged with the notes that "CONDITION NOT A DISABILITY". I never clearly reviewed his DD214 until recently when after 10+ years of begging he finally decided to apply for VA disability. I'm very glad to have people like LTC Parker willing to fight for us! I'm a little in shock about it all though, because just yesterday I was telling my husband "something isn't right about this" when it came to his DD214 and discharge exam. You have definitely set the bar and I can't wait to fight for my husband!!!